156. Memorandum From Charles Runyon of the Office of the Assistant Legal Adviser for United Nations Affairs to the Director of the Office of United Nations Political and Security Affairs (Bond)1
SUBJECT
- Korean Armistice
As you know, our inflexibility has led us to lose chances to come out of the NNSC matter with agreement on removal to the DZ and a simple reservation of the position of all concerned on special inspections from the DZ. Our allies have protested our actions in this matter.
While we might still, in a General Assembly debate, be able to rely on the support of the “16” for the May 31 statement,2 and their [Page 283] silence on its execution, the type of official leaking rather strongly evidenced by the Leviero story on page 1 of today’s New York Times3 will make our case most difficult.
As Defense has advised the UNC, our plan regarding obsolescence has been to authorize replacement on the theory that paragraph 13 (d) does not require the strained construction that “same” type and effectiveness means identical designation, vintage, and absolute qualities. In construing paragraph 13 (d) in accordance with the purposes and aims of the Armistice Agreement and with regard for the practical construction put on it by the other side, we can act lawfully and with a proper regard for our responsibilities as a nation that respects the law and its own promises.
I do not know that measures you can or might wish to recommend to the Secretary or Mr. Murphy regarding the Leviero story, and, more fundamentally, Defense’s penchant for defying the law and the sensibilities of our allies; it must be borne in mind that both sides can violate an agreement, and that reinvocation of the protected sanctuary argument is not likely to win a case in the United Nations General Assembly.
In short, the legal implications of the situation are that unless Defense and State immediately agree to abide by the previously projected U.S. position on full reporting and a reasonable and conscientious interpretation and application of Article 13 (d), the United States will have been guilty of violating the Korean Armistice by measures going well beyond any mere suspended performance warranted by past Communist violations. If Defense considers this an incorrect reading of the law, it would be possible to put the question to the International Court of Justice for advisory opinion, as the General Counsel’s Office of Defense itself suggested regarding the NNSC, although I would question the propriety of considering the ICJ as the forum to settle a State–Defense difference when there is an excellent chance in the present situation of having our actions soundly criticized by that tribunal.
I attach in the form of a draft letter a suggestion of the position we should take with Defense.4
- Source: Department of State, UNP Files: Lot 64 D 167, Gen Corresp. Secret.↩
- See footnote 4, Document 150.↩
- The article by Anthony Leviero was run under the headline “Korea Arms Curb Held Unfair to U.S.” Leviero pointed out that Pentagon officials were concerned about the deteriorating position of the U.N. Command in Korea, hampered by the provisions of the Armistice Agreement, while North Korean forces were being reinforced in violation of the Agreement.↩
- Not printed. The letter proposed by Runyon would have called on the Department of Defense to avoid any further linking of the NNSC withdrawal with the replacement problem. The letter proposed by Runyon was not sent, but see the letter from Murphy to Gray, infra.↩